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Is your will enough? Why you may need a letter of wishes

If your will is the most important document that you will ever write, a letter of wishes could well be the second.

We all know that having an up-to-date will in place is sensible, but the importance of a letter of wishes is less well appreciated. Sarah Hartley, wills and probate lawyer at Malcolm C Foy & Co in Doncaster and Rotherham, explains why letters of wishes are a good idea and what they might contain.

Wills that may be challenged by family members
Where family differences have led to an individual being cut out of a will, a letter of wishes can be a useful indicator of the reasoning behind the decision. The letter can go into as much detail as the writer wishes and may include the background and family history that has led them to take this course of action.

There may be many reasons for cutting a family member out of your will, such as estrangement, financial irresponsibility, addictive behaviour, problematic relationships with the spouses of adult children and religious differences. When making a will you have the right of testamentary freedom to do as you please. This includes leaving nothing to family members or perhaps giving the estate to friends or charity, if that is your wish. But, increasingly, such decisions are being challenged in the courts.

In this situation a letter of wishes can be a very important document, since it provides an insight into the background that the will itself does not contain and can help to explain a decision that others may not understand. The content of the letter of wishes alone can sometimes be sufficient to prevent a formal challenge from family members, who, while they may not be happy about the will, are prepared to respect your wishes once the reasoning is made clear to them. It can also satisfy doubts about your mental capacity, and confirm that you were not under any duress. Alternatively, the content of the letter can be sufficient to make a disappointed beneficiary realize that a court may not be sympathetic to their cause and decide not to challenge the will accordingly.

Where a formal challenge is made, the letter of wishes is your opportunity to explain your decision to the court from beyond the grave.

There are various grounds on which a will can be challenged and, in particular, children (including adult children), spouses and dependants (which has a broad meaning) can try to make a claim on your estate. Of course, the fact that it is technically possible to challenge a will does not mean that such a challenge will be successful.

Conditional legacies
If you can foresee a challenge to your will by a particular person, you may consider adding a conditional legacy to that individual in your will.

A conditional legacy is where you leave a certain amount of money, or a share of the estate, to an individual on the condition that that person does not challenge the will. The person to whom the legacy is left can potentially still bring a claim on the estate, but they risk losing the legacy if they are unsuccessful.

The amount of the legacy usually requires careful thought, as it needs to be within the limits of what the testator is prepared to give to a beneficiary he views as unworthy, but a sufficient incentive to make the possibility of challenging the will, and ultimately getting nothing, too big a risk.

Where a conditional legacy is used in a will, a letter of wishes setting out the reasons for doing so is extremely important. This ensures that executors are fully aware of your thinking, and also explains the position to the beneficiary and, ultimately, to a court if the beneficiary decides to challenge the will regardless.

Legal limits of a letter of wishes
The content of a will is legally binding on executors, meaning they must do as it says. This is not the case for a letter of wishes, which is merely an expression of intent or a guide to what the writer is thinking. Unlike a will, which ultimately becomes a public document once the grant of probate has been received, the letter of wishes is usually confidential to the executors. They have a discretion as to whether to disclose its contents to the beneficiary, and will be guided by your views on this point, which should be included in the letter.

For advice on making a will and letters of wishes, contact Sarah Hartley at Malcolm C Foy & Co on 01302 340005

The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice, and the law may have changed since this article was published. Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances.04.08.16